U.S. SUPREME COURT

Salinas v. Texas

CONSTITUTIONAL LAW — Criminal Law — Self-Incrimination

New Jersey Law Journal

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Salinas v. Texas, No. 12-246; U.S. Supreme Court; opinion by Alito, J.; concurrence by Thomas, J.; dissent by Breyer, J.; decided June 17, 2013. On certiorari to the Court of Criminal Appeals of Texas.

Petitioner, without being placed in custody or receiving Miranda warnings, voluntarily answered some of a police officer's questions about a murder, but fell silent when asked whether ballistics testing would match his shotgun to shell casings found at the scene of the crime. At petitioner's murder trial in Texas state court, and over his objection, the prosecution used his failure to answer the question as evidence of guilt. He was convicted, and both the state court of appeals and court of criminal appeals affirmed, rejecting his claim that the prosecution's use of his silence in its case in chief violated the Fifth Amendment.

Held: The judgment is affirmed.

369 S.W.3d 176, affirmed.

Alito, J., joined by Roberts, C.J., and Kennedy, J., concluded that petitioner's Fifth Amendment claim fails because he did not expressly invoke the privilege in response to the officer's question. Pp. 3-12.

(a) To prevent the privilege against self-incrimination from shielding information not properly within its scope, a witness who "desires the protection of the privilege ... must claim it" at the time he relies on it. Minnesota v. Murphy, 465 U.S. 420, 427. This court has recognized two exceptions to that requirement. First, a criminal defendant need not take the stand and assert the privilege at his own trial. Griffin v. California, 380 U.S. 609, 613-15. Petitioner's silence falls outside this exception because he had no comparable unqualified right not to speak during his police interview. Second, a witness' failure to invoke the privilege against self-incriminationmust be excused where governmental coercion makes his forfeiture of the privilege involuntary. See, e.g., Miranda v. Arizona, 384 U.S. 436, 467-68, and n. 37. Petitioner cannot benefit from this principle because it is undisputed that he agreed to accompany the officers to the station and was free to leave at any time. Pp. 3-6.

(b) Petitioner seeks a third exception to the express invocation requirement for cases where the witness chooses to stand mute rather than give an answer that officials suspect would be incriminating, but this court's cases all but foreclose that argument. A defendant normally does not invoke the privilege by remaining silent. See Roberts v. United States, 445 U.S. 552, 560. And the express invocation requirement applies even when an official has reason to suspect that the answer to his question would incriminate the witness. See Murphy, 465 U.S. at 427-28. For the same reasons that neither a witness' silence nor official suspicion is sufficient by itself to relieve a witness of the obligation to expressly invoke the privilege, they do not do so together. The proposed exception also would be difficult to reconcile with Berghuis v. Thompkins, 560 U.S. 370, where this court held in the closely related context of post-Miranda silence that a defendant failed to invoke his right to cut off police questioning when he remained silent for 2 hours and 45 minutes. Id. at —. Petitioner claims that reliance on the Fifth Amendment privilege is the most likely explanation for silence in a case like his, but such silence is "insolubly ambiguous." See Doyle v. Ohio, 426 U.S. 610, 617.

To be sure, petitioner might have declined to answer the officer's question in reliance on his constitutional privilege. But he also might have done so because he was trying to think of a good lie, because he was embarrassed, or because he was protecting someone else. Not every such possible explanation for silence is probative of guilt, but neither is every possible explanation protected by the Fifth Amendment.

Petitioner also suggests that it would be unfair to require a suspect unschooled in the particulars of legal doctrine to do anything more than remain silent in order to invoke his "right to remain silent." But the Fifth Amendment guarantees that no one may be "compelled in any criminal case to be a witness against himself," not an unqualified "right to remain silent." In any event, it is settled that forfeiture of the privilege against self-incrimination need not be knowing. Murphy, 465 U.S., at 427-28. Pp. 6-10.

(c) Petitioner's argument that applying the express invocation requirement in this context will be unworkable is also unpersuasive. The court has long required defendants to assert the privilege in order to subsequently benefit from it, and this rule has not proved difficult to apply in practice. Pp. 10-12.

Thomas, J., joined by Scalia, J., concluded that petitioner's claim would fail even if he invoked the privilege because the prosecutor's comments regarding his precustodial silence did not compel him to give self-incriminating testimony. Griffin v. California, 380 U.S. 609, in which this court held that the Fifth Amendment prohibits a prosecutor or judge from commenting on a defendant's failure to testify, should not be extended to a defendant's silence during a precustodial interview because Griffin "lacks foundation in the Constitution's text, history, or logic." See Mitchell v. United States, 526 U.S. 314, 341 (Thomas, J., dissenting). Pp. 1-2.

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